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Ramalinga Cheiti Vs. Ragunatha Rau and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1897)ILR20Mad418
AppellantRamalinga Cheiti
RespondentRagunatha Rau and ors.
Cases ReferredHurrinath Bai v. Krishna Kumar Bakshi I.L.R.
Excerpt:
civil procedure code - act xiv of 1882, section 12--suit for money--application by defendant for an account of dealings with plaintiff--defendants' right to bring a separate suit, for an account. - - but looking at the plaint in the present case we are clearly of opinion that the suit is not, of the supposed character. there is no allegation of a mutual account, that is, an account showing payments and receipts on the one side as well as on the other, phillips v......decision in hurrinath bai v. krishna kumar bakshi i.l.r. 14 cal. 147 has any application to the present case. these observations practically dispose of the argument derived from section 12, civil procedure code. there is nothing in the provisions of that section to prevent the first defendant from bringing a suit for an account against the plaintiff, notwithstanding the pendency of the present suit. in a suit for an account brought by him (the first defendant) no doubt the matter in issue would have been substantially the matter in issue in the present suit. but the relief claimed in a suit for an account would differ in kind from the relief claimed in the present suit. for these reasons we think that the subordinate judge was right in refusing to allow an amendment of the written.....
Judgment:

1. The only point argued in support of the memorandum of objections was that the Subordinate Judge was wrong in refusing to direct an account to be taken with a view of ascertaining the sum due to the first defendant and give him a decree therefor. It was argued that the plaintiff's suit was in reality a suit for an account, and that the defendant in such a suit was entitled to the benefit of the account if it turned out to be in his favour; and in support of this view it was contended that the first defendant was precluded by the provisions of Section 12 of the Code of Civil Procedure from himself bringing a suit for an account against the plaintiff. The answer to these arguments is, in our opinion, clear. If it were true that the suit was a suit for an account in the proper sense of that term, then it would follow, according to the decision in Hurrinath Rai v. Krishna Kumar Bakshi I.L.R. 14 Cal. 147 which decision illustrates the English practice, that the first defendant would be entitled to have an account taken with a view to obtain a decree for the sum that might be found due to him. But looking at the plaint in the present case we are clearly of opinion that the suit is not, of the supposed character. There is no allegation in the plaint that the first defendant was under an obligation to account to the plaintiff; there is no allegation of a mutual account, that is, an account showing payments and receipts on the one side as well as on the other, Phillips v. Phillips 9 Hare 473 and further there is no prayer for an account. It is true that it was competent to the first defendant to have filed a suit for an account against the plaintiff, but that circumstance cannot alter the character of the suit actually brought by the plaintiff, nor could it entitle the plaintiff to bring a suit for an account if otherwise he was not in a position to do so, Padwick v. Stanley 9 Hare 627. Having regard to the nature of the plaint and to the relations of the parties, we do not think the decision in Hurrinath Bai v. Krishna Kumar Bakshi I.L.R. 14 Cal. 147 has any application to the present case. These observations practically dispose of the argument derived from Section 12, Civil Procedure Code. There is nothing in the provisions of that Section to prevent the first defendant from bringing a suit for an account against the plaintiff, notwithstanding the pendency of the present suit. In a suit for an account brought by him (the first defendant) no doubt the matter in issue would have been substantially the matter in issue in the present suit. But the relief claimed in a suit for an account would differ in kind from the relief claimed in the present suit. For these reasons we think that the Subordinate Judge was right in refusing to allow an amendment of the written statement. Therefore the memorandum of objections is also dismissed with costs.


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